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As a coda to my previous post on abuse and how to deal with it, I am republishing this essay on changing notions of incitement that was first published in Index on Censorship in 2008. The essay was written in the context of the debate about the war on terror – it is an edited version of a talk I gave at an Index on Censorship conference on ‘Extremism and the Law: Free Speech in an Age of Terror’. It does not relate directly to the controversy about the abuse and threats received by Tom Daley and other public figures, nor to the question of how to deal with nastiness on the web. Nevertheless, the issues raised here are pertinent to the wider debate about incitement and the policing of speech.

Twenty years ago, at the height of the Rushdie affair, a televised debate took place in Manchester Town Hall. On the platform was Kalim Siddiqui, the founder of the London-based, Iranian-backed Muslim Institute. The fatwa, he claimed, was just, and Rushdie had to die. How many of you, he asked the audience, support the death sentence? The majority raised their hands. How many, he continued, would be willing to carry it out? Almost the same number kept their hands up. It was an electrifying moment, caught on camera and replayed on the evening news. It became the spark for a debate about incitement to murder.

Many Rushdie supporters demanded that the Director of Public Prosecutions bring a case of incitement to murder against Siddiqui. Frances D’Souza, chair of the International Committee for the Defence of Salman Rushdie, opposed any such move. ‘Siddiqui’s words, although shocking and distasteful’, she pointed out, ‘did not constitute incitement since neither he nor his followers were in any position to carry out the fatwa, nor were they every likely to be in such a position. Using the famous American Court ruling on incitement, there was no “clear and present danger” of Siddiqui’s words becoming action.’

Eighteen years later, the Metropolitan Police and the Crown Prosecution Service took a very different view when confronted with a group of Muslim demonstrators protesting against the Danish cartoons. Four were charged with soliciting murder and incitement to racial hatred for shouting ‘Bomb, bomb Denmark’ and for calling for UK soldiers to be brought back from Iraq in body bags. The demonstrators were even less in a position to carry out their threats or to incite others to do so than Kalim Siddiqui had been. There was no clear and present danger. Nevertheless they were imprisoned for between four and six years – in reality not for incitement or solicitation but for thinking unacceptable thoughts.

The contrast between the treatment of the anti-Rushdie protestors and the anti-cartoon demonstrators is the story not just of how far attitudes to free speech have changed, but also of how the ideas of extremism, incitement and hate speech have transformed. Over the past two decades the notion of ‘hatred’ has expanded, the meaning of ‘incitement’ has become elastic, and the concept of extremism has been redefined. The law is now used to criminalise not just speech that directly leads to harm, but speech that might indirectly cause harm, or which is regarded as morally unacceptable.

In part, the war on terror has helped drive such curtailment of civil liberties. Consider, for instance, the conviction in 2007 of Samina Malik, the so-called ‘lyrical terrorist’, under the Terrorism Act 2000 for possessing materials ‘likely to be useful to a person committing or preparing an act of terrorism’. She was a young woman with some disturbing thoughts in her head. But apart from writing execrable doggerel about her desire to ‘chop chop head of kuffar swine’, her only action was to download inflammatory material from freely available websites – some of which I have downloaded myself. Any terrorist who was unable to download such material for themselves is hardly likely to have the wit to carry out a terrorist outrage. The real crime for which Malik was convicted were the thoughts and desires in her unhinged head. The conviction was later overturned on appeal; but case should never have come to court in the first place, let alone Malik be convicted.

The problem, however, lies much deeper than just the war on terror. The expansion of notions of incitement and hatred began long before 9/11 and some of the fiercest critics of the war on terror have been among the most vocal in arguing for restrictions on free speech, for instance over incitement to racial and religious hatred. The anti-terror laws are exploiting a culture of censorship that already exists.

One of the most significant shifts in recent years has been the mutation of the notion of ‘extremism’ from being a description of a political claim to being a quasi legal term. From the BNP to Hizb ut-Tahrir to Buju Banton’s homophobic lyrics, to label speech as extremist is to label it as a potential candidate for legal sanction. This shift has happened for two reasons. First, extremism has become a moral rather than a political issue. And second there is now a widespread acceptance that it is the job of the state, and of the criminal law, to define moral boundaries.

To label an argument or a thought as ‘extremist’ is today more than simply to locate it on the political map. It is also to make a moral judgement upon it. Something is extremist if it is beyond the boundaries of accepted reasonable debate. And once beyond the boundaries of reasonable debate, few would argue against it becoming a candidate for criminal sanction.

Take hate speech. Why do we talk so much about hate speech these days? Largely because hate speech has become a way of rebranding extremist ideas to stress their moral content; in other words, of rebranding obnoxious political claims as immoral arguments. Where once we might have challenged such sentiments politically, today we are more likely to seek criminal sanctions to outlaw them.

The problem is that one person’s moral necessity may be another’s ethical poison. Two years ago, Iqbal Sacranie, former general secretary of the Muslim Council of Britain, denounced homosexuality on Radio 4’s Today programme. His comments led to a police investigation of ‘behaviour likely to cause alarm, harassment or distress contrary to the Public Order Act’. In response, 22 Muslim leaders wrote to the Timesdemanding the right to be able to ‘freely express their views in an atmosphere free of intimidation or bullying’. Those same leaders denied such a right to newspapers publishing cartoons about Mohammed. Gay rights groups want Muslims (and black raga artists) to be prosecuted for homophobia but want the right to criticise Muslims as they see fit. BNP leader Nick Griffin wants to be free to promote racist hatred, but wants to lock up Islamic clerics who do the same. And so on. The only winner in all this is the state, which increasingly gets to police what any of us can say to each other.

As a result of all this, the distinctions between giving offence, fomenting hatred and inciting violence have become blurred. These distinctions are critical because the giving of offence is not only acceptable, but also necessary in a healthy democratic society. The fomenting of hatred may well create political and social problems; but these are not problems that can be solved by legislation to restrict free speech. Incitement to violence should be an offence, but only if incitement is tightly defined, much more so than it is at present.

Both the blurring of categories and the expansion of the law to criminalise thought is clear in the two pieces of recent legislation that have done most to restrict free speech – the clampdown on the glorification of terrorism, on the one hand, and incitement to religious hatred, on the other. Direct, intentional incitement to terrorist acts – whether or not they occur as a result – has been a criminal offence for some time. What is new is the trend towards criminalizing indirect incitement – glorification of, or apology for, terrorism. The Terrorism Act 2006 is deliberately vague about what constitutes either glorification or terrorism and does not require demonstration of intention on the part of those charged with an offence.

The creation of such offences, and the convictions not just of the anti-cartoon protestors, but of Islamic firebrands such as Abu Hamza and Abu Izzadeen, has led to accusations of Islamophobia, and to the claim that the law is specifically targeting Muslims. But hand-in-hand with the criminalising of Islamic dissent has come the criminalising of criticism of Islam. In parallel with the banning of glorification of terrorism has come the banning of incitement to religious hatred, a law aimed primarily at appeasing Muslim sentiment. Far from targeting Muslims, the law is taking it upon itself to determine what anyone, Muslim or non-Muslim, can say about each other.

Many of those who opposed the law against the glorification of terrorism supported the criminalising of religious hatred as protection for a beleaguered minority. Many of those who opposed the religious hatred law as infringing legitimate speech support the outlawing of the glorification of terrorism as a necessary weapon in the war on terror.

The trouble is, we cannot have it both ways. If we invite the state to define the boundaries of acceptable speech, we cannot complain if it is not just speech to which we object that gets curtailed. The state should not define either what Muslims can say or what can be said about Muslims – or about anybody else for that matter.

Samina Malik should have the right to write doggerel in praise of jihad. Protestors against the Danish cartoons should have the right to shout ‘Bomb Denmark’. And Danish cartoonists should have the right to caricature Mohammed as they see fit. It is politically naïve to imagine that criminal sanctions are the best weapons against bad thoughts or unhinged minds. It is politically dangerous to divest responsibility to the state to determine the moral acceptability of speech – whether in the cause of anti-racism or the course of the war on terror.

Thanks for spotting that. It is not a slip of the tongue, more a very poorly expressed sentiment. What I meant was that ‘It is politically dangerous to divest ourselves of, and pass on to the state, the responsibility to…’ Since I am republishing here an old essay, I will leave it as it is, in all its gloriously clumsy phrasing.

The equation is simple, isn’t it? Mass immigration = conflict = authoritarian state = loss of free speech. Anyone who supports mass immigration also supports the loss of free speech, whether knowingly, like New Labour and the S.W.P.*, or unknowingly, as a useful idiot.** Free speech is like bland food: it’s a so-called “British” tradition that does not flourish amid vibrancy. I wonder about its cultural and biological underpinnings. Free speech, free enquiry and science all seem to have grown out of Protestantism. No Protestant country has ever gone communist, and no Protestant country has ever gone fascist except by being invaded. Protestant countries do well on the (un)corruption, innovation, and Nobel-prize indices too. (bland) Food for thought?

“The only winner in all this is the state, which increasingly gets to police what any of us can say to each other.”

Yes. The state has relentlessly promoted mass immigration, despite never having, or seeking, a democratic mandate for it. It’s called divide-and-rule. New Labour, who were most enthusiastically (and underhandedly) in favour of mass immigration, were also most enthusiastically (and abovehandedly) opposed to free speech. If you think that’s a coincidence, I need financial backing for a perpetual-motion engine I have recently invented. Further details available on request.

**”Useful idiot” is a term attributed to Vladimir Ilyich Lenin (1870-1924), a keyly pivotal influence on the aforementioned S.W.P. and, as you might expect, not a big fan of free speech. For further information see http://www.marxists.org/archive/lenin/index.htm

I don’t know about the equation being simple, but your so-called argument certainly is. So mass immigration causes authoritarianism and loss of free speech? Compare America, a nation built on immigration, with Russia, a nation with relatively low immigration. Which, I wonder, is more authoritarian and censorious? No Protestant country has ever gone fascist? Presumably Germany just happened to slip your mind. As for the ‘British tradition of free speech’ does that include the tradition of blasphemy laws, the denial for centuries of free speech to Catholics, and libel rules that have turned London into the libel capital of the world? And anyone who can seriously talk about the ‘biological underpinnings’ of free speech would seem to require a bit of underpinning themselves, and not just biological.

I prefer not to censor comments on this blog. But in return I would prefer those who make comments to engage their brains before doing so. That’s not too much to ask is it?

Thanks for your reply. I promise you I was engaging my brain and will try to do so again.

** I don’t know about the equation being simple, but your so-called argument certainly is. So mass immigration causes authoritarianism and loss of free speech? **

Yes. The authoritarian state has always justified the loss of free speech by the need to protect minorities — initially, imported ones. All the examples of conflict you list above were brought about by mass immigration. You describe an “electrifying moment” in which an audience expressed its willingness to execute a man for his writing. I don’t think “electrifying” is the mot juste: I’d prefer “horrifying”. That electrifying (your word) / horrifying (my word) moment took place as a direct result of mass immigration. You don’t describe the execution-friendly audience. Let’s call them non-Protestants. It’s clear there was no tradition of free speech in that group. But Mr Siddiqui was not prosecuted by the British state. It’s clear that there was THEN a British tradition of free speech. Which, you rightly complain, is being lost.

** Compare America, a nation built on immigration, with Russia, a nation with relatively low immigration. Which, I wonder, is more authoritarian and censorious? **

Thank you. That is a good point on my side. Clearly, low-immigration Russia is far more authoritarian and lacking in free speech than high-immigration America. Recall that I said “Free speech… seem[s] to have grown out of Protestantism.” Russia has historically been Orthodox and communist. Orthodoxy and communism, like Catholicism and the non-Protestant group mentioned above, are not friendly to free speech. America was founded by Protestant / post-Protestant racists who a) created the First Amendment and a robust tradition of free speech; b) erected racist immigration laws that excluded certain groups for decades. The laws were overturned in the 1960s and mass immigration has, since then, created conflict that some are seeking to use to justify the weakening and removal of the First Amendment. See your own “Farewell, First Amendment?”. Mass immigration = conflict = authoritarian state = loss of free speech.

The German census of May 1939 indicates that 54 percent of Germans considered themselves Protestant and 40 percent considered themselves Catholic, with only 3.5 percent claiming to be neo-pagan “believers in God,” and 1.5 percent unbelievers. This census came more than six years into the Hitler era.

Germany was religiously hybrid in a way Holland, Scandinavia and Britain were not. If you look at Nazi leaders, you will discover a hugely disproportionate number of them came from Catholic backgrounds. The roots of Nazism were in the Catholic south and Austria. Catholicism was a necessary, tho’ very far from sufficient, cause, of Nazism, just as Orthodoxy was of communism. Nazism might be described as a Catholic heresy or parody, with Catholic Hitler, from Austria, as pope and Catholic Himmler, from Bavaria, as Jesuit-General (Himmler deliberately modelled the S.S. on the Jesuits). Compare a) fascism in Catholic Italy, Spain, Portugal, Romania; b) communism (Stalin was educated in a seminary), Japanese militarism, Ba’athism etc in other non-Protestant parts of the world.

** As for the ‘British tradition of free speech’ does that include the tradition of blasphemy laws, the denial for centuries of free speech to Catholics, and libel rules that have turned London into the libel capital of the world? **

Your difficulty there is with the concepts of tendency and average. On average, Britain has had much more free speech than Russia, but less than America. That is why it is perfectly legitimate to speak of a “British tradition of free speech”, tho’ it is a weaker tradition than America’s. No nation has ever had achieved an ideal level of free speech. But clearly America and Britain are nearer the ideal than Russia, North Korea or the non-Protestant nations who supplied Britain, via mass immigration, with the electrifying “Let’s execute a writer!” moment you describe in your article.

** the denial for centuries of free speech to Catholics **

Another good point on my side. Religious difference = conflict = authoritarianism. Britain slowly and painfully grew out of that old indigenous conflict. Now, thanks to mass immigration, we have a new conflict and the equation applies again. Religious difference = conflict = authoritarianism. You protest against policies on multiculturalism, hate speech, etc, but those policies have run on mass immigration. You sum up the consequences here: “The only winner in all this is the state, which increasingly gets to police what any of us can say to each other.” I.e., divide-and-rule. It is not rational of you to support mass immigration for exploitation by a state you don’t trust. You are harming things you cherish, like free speech. Open borders don’t mean open minds: they mean open conflict and mouths closed by the state.

** And anyone who can seriously talk about the ‘biological underpinnings’ of free speech would seem to require a bit of underpinning themselves, and not just biological. **

But you yourself believe in the biological underpinnings of free speech. It doesn’t exist among giraffes, electric eels, rotifers, or any known species but Homo sapiens. Free speech is a human phenomenon, like high performance in science and mathematics. But neither is universally human. The question is, then, whether biological differences between various groups of H. sapiens help explain (tho’ not fully determine) our differing propensities for free speech — and for high performance in science and mathematics. I say “yes”. You say “no”. I’m not sure you’ll be saying “no” in a few years. Given what’s now happening in genetics, I’m not sure you should be saying “no” in 2012.

** I prefer not to censor comments on this blog. But in return I would prefer those who make comments to engage their brains before doing so. That’s not too much to ask is it? **

I hope I have not said anything worthy of censorship. These are scientific questions. You and I both believe in science as a route to better understanding of reality. I am very excited by current developments in genetics and anthropology and we shall soon see which of us has more adjustments to make in his Weltanschauung.

So let me get this straight. You accept that low-immigration Russia is more authoritarian than high immigration America but that doesn’t undermine your claim that immigration leads to authoritarianism because more Americans are Protestant? You accept that the majority of Germans are Protestant but that doesn’t undermine your claim that ‘no Protestant country has ever gone fascist’ because, well, quite a few Germans are Catholic? And you think that it makes sense to talk of the ‘biological underpinnings’ of free speech because giraffes don’t practice it? If this is what you produce when your brain is engaged, I’d hate to be around when you disengage it.

Are you aware of the activities of the Westboro Baptist Church in the United States. Their act is to picket and demonstrate at the funerals of gays and soldiers killed in the Middle East. This provokes counter demonstrations by those who seek to defend of the deceased. Last year the Supreme Court defended Westboro under the 1st Amendment but last week Federal legislation was passed limit the access to demonstrators at military funerals. Westboro has declared they will ignore the new law. This legislation has given me pause and I am curious of your reaction..

Five years ago, my son’s father asked me to join him in bringing a lawsuit against the Westboro Baptist Church. I declined for the following reasons:

I truly believe this is an issue of free speech. I do not like it, and I do not like the WBC, but it is free speech. I was certain that in the end, all that would be accomplished was that a bigger voice would be given to a relatively unknown group of people. I felt it would give them the platform and spotlight they had been seeking. And it did…

I am glad the Supreme Court has ruled with the law, with the nation, with the Constitution. In America, you cannot take away the right of free speech, no matter how vile.

Like Julie Francis, I am with the Supreme Court and opposed to the new legislation.

The loss of free speech in Britain and Canada concerns me. Without a US style Bill of Rights our right to free speech is being eroded by Human Rights Tribunals in Canada and it appears Government in the UK. While I may abhor some views such as homophobia, I will defend the right of anyone to express them.
In Canada we too suffer from the tyranny of political correctness, such that in certain circles one censors one’s speech. It is only speech that incites violence against persons that might be unlawful but you make the excellent point about ‘clear and present danger’. Who among us has not said ‘I’ll kill so and so…..’ without literally meaning it or there being that clear and present danger?
We are heading down a slippery slope and the erosion of free speech is a serious infringement that may presage the further removal of cherished rights.
I do hope libel reform is obtained in the UK so that scientists for example are allowed fair comment. In Canada scientists are being gagged by our current Conservative Government under threat of being dismissed and told what results are acceptable to the government ideology. I expect some heavy duty talent will be heading to Europe and other areas from Canada. .